As Senator Rubio put it in a remarkable hearing, the administration’s approach is “a house of cards.”

By Victor Gilinsky —
February 10, 2014

On January 30, the Senate Foreign Relations Committee held a remarkable hearing on upcoming U.S. agreements with other countries to permit the sale to them of U.S. nuclear technology. For the first time, a bipartisan majority of the senators participating — and a surprising number turned out — rejected the executive-branch line that stricter rules on nuclear commerce would be counterproductive.

What specifically troubled the committee was the Obama administration’s unwillingness to include in these agreements a requirement that buyer countries promise not to seek fuel technologies (enrichment and reprocessing) that could give them access to nuclear explosives (highly enriched uranium and plutonium). Everyone acknowledges that a country that can enrich uranium, or reprocess spent fuel to extract plutonium, is within easy reach of The Bomb.

The administration nevertheless argues that inclusion of this tight requirement makes it difficult to negotiate nuclear agreements and thereby gain both the commercial benefits and the influence that engaging in nuclear trade brings. It wants to pursue a “flexible” approach that concedes the fuel-technology issue to the buyers’ discretion, with the hope of persuading them to act responsibly.

Chairman Robert Menendez (D., N.J.) and ranking member Bob Corker (R., Tenn.) did a very workmanlike job of exposing the inconsistencies in the testimony of Deputy Energy Secretary Daniel Poneman and Assistant Secretary of State Thomas Countryman. In his quiet and friendly way, Corker was especially tough. He told Poneman of the concern that the Energy Department’s “involvement actually in these negotiations is sometimes what drives us to have these happenstance, ad hoc agreements” in which commercial interests “trump” the “nuclear nonproliferation piece.”

Poneman insisted on his devotion to nonproliferation (“There is no commercial benefit that is worth a proliferation risk, period,” he maintained), but his protestations came off lamely as he was there primarily to argue for flexible arrangements to allow commercial deals to proceed. Senator Marco Rubio (R., Fla.) caught the committee’s skeptical mood regarding the administration’s plea for diplomatic flexibility in the nuclear field with his question, “How is this not a house of cards?”

Nor were the senators buying any more the line that the Senate needn’t bother about the details of the agreements. These are negotiated secretly by the administration and, once revealed, enter into force promptly unless stopped by a congressional vote. An agreement already negotiated with Vietnam and due soon to be formally submitted hasn’t yet been shown to the senators. In fact, up to now Congress has played, as Senator Corker unhappily put it, “a zero role.” Secretary Countryman tried to assure him that the State Department team expressed the Senate’s view during negotiations, and thus the senators were present “even when you don’t know you are.” Corker responded drily, “We might want to express it ourselves.”

This hearing was remarkable also because, unprecedented as it was, the next day there was not a word about it in a single newspaper. C-SPAN decided not to cover it, apparently because the subject seemed too “wonkish.” It’s a familiar phenomenon. Everyone from the president on down agrees there is hardly a more important subject than proliferation. Last November, President Obama even issued an executive order extending the “national emergency” with respect to proliferation. Think about it: We are supposed to be in a proliferation-caused national emergency, and it is pretty much business as usual.

The flow of nuclear trade and its proliferation significance doesn’t get covered much because the subject is too complicated technically and legally for most reporters. And if you don’t understand it yourself, it’s hard to explain it to your readers.

Perhaps most significant in reducing press interest is that the proliferation consequences are speculative and may come decades in the future. This extended time scale is a second factor, along with the lack of press attention, that permits administrations to get away with irresponsible behavior, because the adverse effects are likely to become evident on someone else’s watch. Precisely on this lack of regard for future international security, the hearing produced stunning, if unintentional, admissions from the Departments of State and Energy.

Looking back, the truth is that at least since the 1954 launch of Atoms for Peace, we have spread nuclear wherewithal for commercial and political advantage without giving a lot of thought to the possible future implications. President Eisenhower rationalized that so long as the projects were small, they did not pose security problems. As nuclear projects got bigger, the rationale changed — but the practice didn’t. Eisenhower’s successors argued that the recipients of our nuclear exports were friendly and responsible. And so, in the current case, although Vietnam resists giving up the right to enrich and reprocess, the State Department nevertheless testified (in earlier House hearings) to Vietnam’s “commitment to nonproliferation.”

Senator Ed Markey (D., Mass.) pointed out the weakness of basing nuclear agreements on assessments taking such a short view. Less than 40 years ago, he observed, we were in a bitter war with Vietnam, while at the same time we considered the Shah of Iran a good and stable friend to whom we planned to sell a large number of nuclear power plants. Today the Obama administration is touting a nuclear agreement with Vietnam, while a different government in Iran may be on the brink of being able to produce nuclear weapons. Had we supplied the Shah with that technology, it would now be in the hands of the current Iranian regime, and our problems with it would have been vastly greater.

There is, as Markey put it, a fine line between civilian power facilities and deadly weapons, and sitting on that line are enrichment and reprocessing. “We cannot predict what the status of any of these countries will be 20 or 30 or 40 years from now,” he said, but whoever is in charge will retain the nuclear power plants and materials the country obtained from us, and there is no way of telling what future rulers will do with them.

Senator John McCain (R., Ariz.), a fan of the Vietnam agreement, did his best to present the traditional rationale for (“imperfect”) agreements lacking adequate protection: that if we won’t sell other countries reactors, someone else will, and we would lose business and jobs to nuclear suppliers with laxer rules. (A later witness, Henry Sokolski, the executive director of the Nuclear Proliferation Education Center, pointed out that instead of throwing our hands up at the recalcitrance of buyers, we should be concentrating on gaining the suppliers’ agreement on common effective rules.)

But then Senator McCain continued with a jaw-dropping hypothetical to make clear that he supported the agreement with Vietnam, and the nuclear exports that would follow, because of Vietnam’s current strategic importance, even if it leaves open the possibility that the exported technology would later fall into the wrong hands: “Despite the fact that 20 years from now there may be an overthrow of the government and a takeover by al-Qaeda, the fact is that they are on a path that should encourage all of us, and this agreement many of us feel is another step in the direction of a better nation with a better relationship, and with frankly someone that we can, a nation that we can, to some extent, count on as times may worsen in the Asia Pacific region.”

It was an opportunity for the administration witnesses to say that there are limits to “flexibility,” and that if one assumes such a bizarre eventuality as al-Qaeda, or any similarly extreme group, taking over a country, or even if there is a risk of that, then of course the responsible conclusion would be to rule out any nuclear export. But that wasn’t at all what they said.

Secretary Countryman, who seems genuinely earnest about dealing with proliferation, nevertheless had his brief. He was there to oppose any stricter conditions in the Vietnam agreement, and he embraced Senator McCain’s bizarre hypothetical to make his point. “We don’t assume,” he said, “in negotiating these agreements that times never change; that’s why we retain control and inspections and everything else. And, second, if al-Qaeda takes Vietnam over in 20 years, God forbid, a binding agreement or legal agreement never to seek [enrichment and reprocessing] won’t mean a damn thing at that point.”

Of course, as North Korea has taught us, in that eventuality the “control and inspections and everything else” that Secretary Countryman touts wouldn’t mean a damn thing either. In the normal course of events, legal agreements are very important. If, however, we are dealing with a country that might “go rogue,” we shouldn’t be contemplating nuclear trade with it in the first place, no matter what restrictions are imposed.

What the hearing on nuclear agreements tells us is that the flexible approach of the Obama administration is ultimately a fatalistic one. The administration has given up trying to convince suppliers to tighten the rules of international nuclear trade so that they would provide a reasonable safety margin between civilian and possible military programs. The administration assumes that worldwide nuclear-power expansion is inevitable. It justifies its near-term commercial pursuit of our share of the business on the grounds that U.S. nuclear-trade agreements, even if lacking in important protections, are marginally more restrictive than those of other suppliers. If it turns out later that today’s permissive agreements contribute to lots of countries having enrichment and reprocessing plants that give them easy weapons options, well, that will be someone else’s problem. The trouble is, that someone else is us.

— Victor Gilinsky is an independent consultant. He is a former commissioner of the U.S. Nuclear Regulatory Commission and head of the Rand Corporation’s Physical Sciences Department. He is currently working with the Nonproliferation Policy Education Center.